Supreme Court and Government Criticized for Failing Women on Abortion Rights

India has long celebrated its “liberal abortion regime,” as highlighted by Union Minister Smriti Irani in a 2022 article. The government emphasizes efforts to make reproductive choices affordable and promote safe motherhood. However, recent judicial decisions reveal a concerning trend challenging the purported liberal stance on abortion in the country.

Abortion Laws and Reproductive Hierarchy: The Medical Termination of Pregnancy Act, 1971, was crafted to shield doctors from prosecution for performing abortions within the specified period. While the right to bodily autonomy is recognized by the Supreme Court under Article 21 of the Constitution, a notable reproductive hierarchy has emerged, favoring the medical board and doctors over pregnant individuals. Additionally, the criminalization of abortion continues to loom over women, posing a threat to their bodily autonomy.

Case Analysis: Examining a recent case from the Delhi High Court sheds light on the evolving landscape of abortion jurisprudence in India. A woman sought termination due to severe trauma after her husband’s death, supported by psychiatric evaluations indicating severe depression and suicidal ideation. Despite the court initially ruling in favor of abortion, the All India Institute of Medical Sciences (AIIMS) refused the procedure, emphasizing the need for clarity on the fetus’s status. This reflects a growing trend where court decisions favor the rights of the fetus over the pregnant individual.

Judicial Trends and Concerns: Recent decisions, such as the irregular recall order in another abortion case by the Supreme Court, raise alarms about the shifting abortion jurisprudence. The government’s influence in courts and hospitals, as seen in both AIIMS cases, contradicts Ministry guidelines allowing terminations beyond 20 weeks. This signals a departure from India’s traditional focus on family planning and a growing need for civil society and feminist movements to advocate for the decriminalization of abortion.

Conclusion: While India boasts a liberal abortion regime, recent judicial decisions suggest a worrisome shift in prioritizing fetal rights over the bodily autonomy of pregnant individuals. The potential consequences, akin to the United States, could undermine reproductive health infrastructure and jurisprudence. Advocates stress the urgency for courts to consider the well-being of pregnant individuals and decriminalize abortion to ensure a more equitable and just legal framework.